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Legal Issues That Will Affect Your Visa Status

Coming to America is a dream for many people around the globe. Most foreign nationals must obtain a visa before crossing the border to enter the United States legally. A foreign national is any foreigner who is not a naturalized citizen.

Certain legal issues can affect the status of your visa. This is the case even if a foreign national properly obtains a visa. These legal issues can affect your status in the United States. They also can affect your status when trying to re-enter the United States. Legal issues also can affect visa eligibility and maintenance.

Noncitizens must remain aware of how legal issues can affect visa applications or maintenance. This also applies to green card holders. It extends across all visa categories, including student visas and employment-based visas.

Visa holders must be mindful of requirements to maintain the good standing of their immigrant statuses. Criminal history, for example, could result in a denial of adjustment of status and deportation. Legal issues could lead to the removal of a foreign national. Suspension of immigration benefits also can occur.

Any legal immigration process can be negatively affected by failure to maintain a positive legal or criminal record. Legal issues can delay or cause termination of any in-process naturalization. Failure to maintain a positive legal or criminal record also may be grounds to terminate a resident status.

Lawful and Unlawful Entries

Foreign nationals can enter the United States lawfully or unlawfully. How a foreign national enters the country can affect their visa status.

A lawful entry into the United States requires the foreign national to apply for a visa properly. They must do so through the Department of State before entering the U.S.

The secretary of state may issue a visa if a foreign national fulfills all the requirements. The visa allows the foreign national to enter the United States lawfully. Entering the country without acquiring a visa is considered an unlawful entry.

Visa Extensions

Foreign nationals who want to extend their stay in the United States must file this request with U.S. Citizenship and Immigration Services (USCIS). They must do so before an authorized stay expires. Foreign nationals may be removed from the country if they remain in the United States longer than authorized. They also may be barred from returning for a set period.

The applicant should file the request to extend a stay at least 45 days before the authorized stay expires. An application to extend a stay requires that a foreign national:

  • Was lawfully admitted into the United States with a nonimmigrant visa
  • Has a nonimmigrant visa status that remains valid
  • Has not committed any crimes that make the applicant ineligible for a visa
  • Has not violated any conditions of admission
  • Has a valid passport that will remain valid for the duration of the extended stay

Bars to Admission Into the United States

Foreign nationals deemed inadmissible under the Immigration and Nationality Act are ineligible to receive visas. They cannot be admitted into the United States. Foreign nationals who have been removed previously or who are unlawfully present in the country will be barred from reentry into the States for a set period.

Certain Foreign Nationals Previously Removed

Arriving foreign nationals are classified as inadmissible if they seek admission into the U.S. within five years of a removal due to a violation of the Immigration and Nationality Act. The person is classified as permanently barred if they are deported from the U.S. for a second or subsequent time or if they are convicted of an aggravated felony at any time during the original removal.

Foreign Nationals Unlawfully Present

Generally, any foreign national unlawfully present in the United States will be barred from obtaining a visa for a set time. The length of prohibition depends on how long the person was unlawfully present in the country.

If an individual was unlawfully present in the U.S. for more than 180 days but less than one year, they are considered inadmissible. They may not seek admission into the country for three years after the removal. If the person is unlawfully present in the United States for one year or more, they are inadmissible and cannot seek admission into the U.S. within 10 years of removal.

Exceptions to these rules exist for:

  • Minors
  • Asylees
  • Family unity
  • Battered women and children
  • Victims of a severe form of trafficking in persons

Waivers of Unlawful Presence

The attorney general has sole discretion to waive the unlawful presence of a foreign national if the person is the spouse or child of a United States citizen or a lawfully admitted permanent resident. The individual must show that refusing admission would result in extreme hardship to the citizen or the lawfully resident spouse or parent.

Immigrant Intent Issues When Extending Visa

A successful approval for a visa extension depends on the foreign national's reasons for needing to stay longer in the U.S. and on their ability to prove a continued "nonimmigrant intent." A nonimmigrant intent means that the foreign national still plans to leave the U.S. and will not try to live in the country permanently. If the foreign national intends to live in the U.S. permanently, they have an "immigrant intent," and their visa will not be extended.

U Visas for Victims of Domestic Violence

You could qualify for a U visa if you've faced legal issues arising from your victimhood to domestic violence. Under such a visa type, you can secure legal status in the United States by becoming a VAWA self-petitioner.

VAWA refers to the Violence Against Women's Act of 1994. Under VAWA and relevant immigration laws, abused children, spouses, and parents can file Form I-360. This form is also titled the "Petition for Amerasian, Widow(er), or Special Immigration." The family members of victims may also apply.

You do not need to pay a fee to file this form, but you will need to submit proof of your eligibility. Proof includes demonstrating that you are the victim of domestic violence, which can include medical records testifying to your victimhood. It can also include affidavits providing a testament to your victimhood. Victims of human trafficking are included within the group of people who can apply for this visa type.

With the U visa program, the United States allows noncitizens who are also victims of abuse to become lawful permanent residents (LPRs). LPRs are green card holders, which means they can legally work in the United States.

Getting Legal Help

Immigration laws can be difficult to understand and are subject to change. It is important to consult with an experienced immigration attorney or check the USCIS website for the most up-to-date visa rules and regulations. Learn more about the United States border entry rules and visas on FindLaw.

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